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Bremmer v. Appleton Electric, LLC

United States District Court, D. Nebraska

August 1, 2016

RICK BREMMER, Plaintiff,


          THOMAS D. THALKEN United States Magistrate Judge.

         This matter is before the court on Appleton Electric, LLC’s (Appleton) Application for the Award of Costs and Fees (Filing No. 33).[1] Appleton seeks a determination of the amount of an award previously granted for work completed in a case filed by the plaintiff prior to this action. Appleton filed an index of evidence (Filing No. 33) in support of the application. In response, Rick Bremmer (Bremmer) filed a brief (Filing No. 40). Appleton filed a brief (Filing No. 44) in reply.


         This action arises from an injury Bremmer sustained on May 25, 2011, when he delivered an order on behalf of Waste Connections, Inc. (WCI) to Appleton on Appleton’s premises. See Filing No. 1-1 Complaint p. 2. Bremmer fell into an open pit after walking across a darkly lit warehouse. Id. Bremmer alleges he suffered numerous injuries to his shoulders and neck, needing multiple surgeries. Id. Additionally, Bremmer alleges he suffers lost wages, pain and suffering, and mental distress. Id. Seeking redress from Appleton for these damages, Bremmer filed this action on February 12, 2015, in the District Court of Platte County, Nebraska. Id. at 1. Appleton timely removed the case to this court on September 4, 2015. See Filing No. 1 - Notice of Removal. Shortly after removal, Appleton filed a motion to dismiss seeking dismissal of Bremmer’s case based on the relationship between this case and an earlier lawsuit. See Filing No. 6.

         The incident surrounding Bremmer’s injuries was previously litigated in Waste Connections, Inc. v. Appleton Electric, LLC, 8:12CV436 (the 2012 Lawsuit). Bremmer and WCI filed the 2012 Lawsuit against Appleton and Emerson Electric, LLC on September 18, 2012, in the District Court of Platte County, Nebraska. See Filing No. 1-1, in Case 8:12CV436. Those defendants removed the matter to this court on December 20, 2012. See Filing No. 1, in Case 8:12CV436. In the complaint, WCI alleged it had paid and will continue to pay workers’ compensation benefits to Bremmer. See Filing No. 1-1 ¶ 22, in Case 8:12CV436. Both plaintiffs alleged the defendants’ negligence caused Bremmer’s injuries. Id. ¶¶ 18-21. The defendants denied the plaintiffs’ allegations and asserted the affirmative defenses of comparative negligence, contributory negligence, and assumption of the risk. See Filing No. 1-1 p. 8 - Answer ¶¶ 3-4, in Case 8:12CV436. The parties engaged in discovery and prepared the case for trial. On November 26, 2013, Bremmer filed a motion to dismiss his claims against the defendants, without prejudice, stating, he “no longer wishes to pursue his claim for loss of earning capacity and future medical in conjunction with the employer.” See Filing No. 68, in Case 8:12CV436. The defendants “[did] not oppose the dismissal of Bremmer’s claims, [however they argued] . . . voluntary dismissal, while without prejudice, should include an award of costs . . . as a condition precedent to his refilling [sic] of the claims.” See Filing No. 70 - Response p. 1, in Case 8:12CV436. On December 20, 2013, the court granted Bremmer’s motion, holding:

Bremmer’s claims against the defendants are dismissed without prejudice, subject to the condition Bremmer must pay the attorneys’ fees and costs reasonably incurred by the defendants in defending Bremmer’s initial claims before Bremmer refiles against either or both of the defendants.

See Filing No. 73, in Case 8:12CV436.

         On March 11, 2014, Bremmer moved to intervene, without payment of fees and costs, and extend the progression deadlines, erroneously arguing he had previously been unrepresented by counsel. See Filing No. 82, in Case 8:12CV436. On April 21, 2014, the court denied Bremmer’s motion. See Filing No. 129, in Case 8:12CV436. Prior to trial, the court dismissed WCI’s claims against Emerson Electric, LLC. See Filing No. 187, in Case 8:12CV436. Bremmer testified during the trial held on May 12, 2014. The court instructed the jury to limit damages to those recoverable by WCI, which included Bremmer’s medical care and diminished ability to work. See Filing No. 212 - Final Jury Instructions, in Case 8:12CV436. The jury did not consider mental distress or pain and suffering. The jury found in favor of WCI, by determining Bremmer had been 49% negligent and Appleton had been 51% negligent in causing WCI’s damages. See Filing No. 226, in Case 8:12CV436. Although Appleton initially appealed, the parties stipulated to the appeal’s dismissal and Appleton satisfied the judgment. See Filing Nos. 253, 256, in Case 8:12CV436.

         Ultimately the court denied Appleton’s motion to dismiss; however, the court allowed the defendant an opportunity to apply for the attorneys’ fees and costs reasonably incurred by Appleton prior to December 20, 2013, in defending the 2012 Lawsuit. See Filing Nos. 19 and 31. Appleton seeks an award of $10, 936.34. See Filing No. 33 - Application p. 2. In addition to facts listed above, Appleton alleges the following additional facts:

2. On January 4, 2013, Christopher A. Sievers (Sievers) entered his appearance as counsel for Bremmer and WCI.
3. On September 6, 2013, Defendants noticed a deposition of Bremmer. The date and location of the noticed deposition was agreed to by Plaintiffs’ counsel of record, Mr. Sievers.
4. On October 25, 2013, Bremmer refused to appear for his properly noticed deposition.
5. On November 11, 2013, Defendants noticed another deposition for Bremmer.
6. Bremmer refused to appear for his second properly noticed deposition on ...

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